CIVIL RESTRAINT IN POLICING

 

In a democratic society, everyone is constitutionally equal; police officers are not above the law and may find themselves in the midst of civil litigation. An average-size lawsuit against a large department, with deep pockets, can be monetarily devastating to the department and the community it serves. In some civil cases, jury awards exceed $30 million. When you calculate jury awards and out-of-court settlements in police liability cases, the sum may reach hundreds of millions annually.

Consider the following hypothetical scenario: Two police officers drink coffee to stay awake while working the midnight shift. A red sports car unexpectedly appears and speeds past their location at approximately one hundred miles an hour. The officers, in full pursuit, follow the reckless driver. Without warning, the driver attempts to navigate a bridge, goes airborne, and spins out of control in the intersection. The officers repeat the same misfortune; however, they strike a pedestrian, and immediately stop to render aid. The speeding sports car pursuit continues, involving several jurisdictions and approximately twenty police cars.

Suddenly, the driver navigates several bootleg turns and drives in the direction of the pursuing police cars. The officers quickly divide to avoid impact, turn around, and pursue the driver once again. The officers engage the sports car in pursuit for over an hour. Finally, the operator abandons the vehicle and tries to run on foot. One officer pursues on foot at the location where he is likely to pass. The officer catches the offender by surprise as he turns the corner of a building and runs directly in his path.

There are three general types of torts against police officers: (1) negligence torts, (2) intentional torts, and (3) constitutional torts. The officers learn later that morning that the pedestrian at the intersection died of multiple injuries; that is a negligence tort. After being transferred to another jurisdiction, several police officers assault the handcuffed sports car driver. The assault represents an intentional tort, in this case, assault and battery. The emotionally drained officers neglect to advise the violator of his right to remain silent and legal counsel, which is a constitutional tort.

This police pursuit scenario characterizes the most frequent types of lawsuits against law enforcement agencies. Officers who operate police vehicles in violation of their department’s policies or state law or who place others in danger may find themselves subject to lawsuits. High-liability behaviors typically involve reckless or negligent operation of a police vehicle. The courts may consider strict liability, that is, acts used by the courts to infer intent or omit state of mind considerations. For example, the officer failed to use flashers and sirens, or did not consider alternatives to vehicle pursuit. Moreover, the officer’s failure to consider traffic control devices can fall under strict liability. In strict liability cases, the court focuses on proving the act, that is, not stopping to assist innocent injured bystanders. Moreover, suits may surface in cases where officers follow correct protocols.

Civil Restraint: Lawsuits

Numerous options are available for citizens to sue law enforcement officers and their agencies. A lawsuit may be filed in state court as a tort claim against local or regional governments. Local governments offer an excellent means for financial return, because their tort settlements present more opportunities beyond addressing constitutional issues. Many opportunities exist to sue police officers and their agencies, including arrest, indifference to training and supervision requirements, abuse of authority, and use of force. Some suits may involve civil rights issues, directed at changing the way agencies treat minorities and women. A related lawsuit may be filed in federal court as a violation of Title 42 of the United States Code, Section 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress….

Section 1983 requires due process of law, protects life, liberty, or property, and provides redress for the violation of one’s constitutional rights by officials acting under “color of law.” State municipalities, regional governments, and sheriffs are vulnerable if (1) acting under color of state law and (2) violating the U.S. Constitution.

Under Color of Law Requirement

”Under color of law” means that a police officer is acting or actually carrying out his or her official duties or acting in a manner that makes it seem appropriate according to the law. Off-duty officers are liable while working in security positions, because they are acting ”under color of law” while performing a police/security function, for example, arresting shoplifters or enforcing state law. An off-duty police officer identifying him- or herself as a police officer is acting under ”color of law.” There are numerous situations in which police officers are working for what appears to be a private corporation. They may come under the authority of the ”color of law” in that private capacity and meet the criteria for violating a citizen’s constitutional rights. Opportunities for ”conflicts of interest” for police officers acting in a double capacity are considerable.

Constitutional Rights Violations

Provisions under the U.S. Constitution and Bill of Rights, including the first ten amendments, are primary areas of concerns. Freedom from unreasonable searches and seizures, a Fourth Amendment violation, is frequently cited in Section 1983 suits. In addition, citizens have a right to assistance of counsel under the Sixth Amendment, another frequent violation. Moreover, the Bill of Rights is applicable to the states and provides freedom from deprivations of life, liberty, or property without due process and equal protection under the Fourteenth Amendment to the U.S. Constitution.

Bivens Actions: Federal Agents

In the case of Bivens v. Six Unknown Federal Agents, 456 F.2d 1339 (1972), the precedent for civil legal remedies for agents who abuse the constitutional rights of citizens is noted. The decision reaffirmed the importance of constitutional rights and Section 1983. The plaintiff alleged that agents of the Federal Bureau of Narcotics acting under the ”color of law” entered the plaintiff’s apartment without probable cause. He was humiliated and handcuffed in front of his wife and children during the illegal search. The agents threatened to arrest the entire family, causing fear and alarm.

The plaintiff was then transported to the courthouse. He was immediately subjected to a visual strip search and interrogated. The petitioner sued in Federal District Court. In addition to the allegations above, his complaint asserted that the arrest and search were without a warrant, and claimed officers used unreasonable force while making the arrest. The plaintiff cited great humiliation, embarrassment, and mental suffering because of the agents’ unlawful conduct.

The U.S. Supreme Court held that a citizen could sue federal agents for financial damages. Citizens have U.S. Constitutional and Bill of Rights protections. In the Bivens’ case, the Fourth Amendment prevailed, not the agents. Citizens have the right to sue federal agents.

State Court: Civil Restraints

If the plaintiff does not prevail in federal court, he or she may seek remedies under state law. Moreover, the standard of proof is only a ”preponderance of the evidence,” a standard much lower than a “reasonable doubt” standard in criminal cases. There are three types of torts under state law, each with different levels of proof:

1. Strict liability means the injury or damage is severe and it is reasonably certain that the harm could have been foreseen. The law dispenses with the need to prove intent or mental state, for example, excessive force in tactical operations.

2. Intentional torts mean that the officer’s intent must be proven, using a foreseeability test. This test determines whether the officer knowingly engaged in behavior that was substantially certain to bring about injury, for example, in wrongful death cases. It must be proven that the officer wanted to severely injure or cause death.

3. In negligence cases, intent or mental state does not matter. What matters is whether some inadvertent act or failure to act created an unreasonable risk to citizens, for example, speeding resulting in a traffic accident, while not responding to an emergency.

Civil Restraints: Defenses to Liability

1. Contributory negligence: The government may prove that the plaintiff contributed to his or her own injury or damage.

2. Qualified immunity doctrine: Protects public officials and government agents from undue interference with their duties.

3. A reasonable belief that probable cause exists and the police officer is entitled to immunity.

There are many other defenses, including good faith exceptions.

In Summary

There are many civil constraints on law enforcement officers’ behaviors. Civil tort actions seek remedies for the plaintiff against the police officer, supervisors, and department. The injured person brings the tort civil action before the court. Generally, the plaintiff is seeking money damages from the defendant(s). Police officers and their departments often have scarce financial resources; the real targets are the law enforcement agencies and taxpayers. In the future, lawsuits will likely increase. Solutions to this legal quagmire will evolve from better trained and educated officers; eventually, the cost of civil litigation will improve.

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